http://www.usatoday.com/news/washington/2011-02-24-RWsamesex23_ST_N.htm?loc=interstitialskip
"WASHINGTON — The Obama administration will no longer defend a law that bans federal recognition of same-sex marriage — a major legal reversal that reinvigorates a national debate over gay rights."
----- He can't do this. Public Law no.104-199 110 Stat 2419 (The Federal Defense of Marriage Act) is an official part of the United States Code (1 USC SS 7, 28 USC 1738C). Agree with it or not, it is the law- passed by Congress, signed into effect by former president Clinton, and unchallenged by the US Supreme Court. The President cannot simply decide to stop upholding the law whenever he feels like it; and the only time the Executive branch has the power to decide the constitutionality of the law is when it passes to that office before signing. If the president does not believe the law to be constitutional than he needs to take it to the SCOTUS.
"The decision, outlined Wednesday by Attorney General Eric Holder, represents the administration's strongest legal advocacy for the rights of gay men and lesbians, who have strongly opposed the Defense of Marriage Act (DOMA). The law defines marriage as only between a man and a woman."
----- Ok.
"Much of the legal landscape has changed in the 15 years since Congress passed DOMA," Holder said. "The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military's 'don't ask, don't tell' policy....but while both the wisdom and the legality of DOMA will continue to be the subject of extensive litigation and public debate, this administration will no longer assert its constitutionality in court."
----- Again, it is not in the hands of the Executive to decide whether or not a law is constitutional. On the federal scale congress makes the laws, the president upholds the laws, and the supreme court determines constitutionality of the laws.
"Holder said he was following President Obama's lead and laid out reasons why government action that treats gay people differently than straight people is subject to court scrutiny. He noted his action departed from a practice of defending federal laws, but said the legislative record that led to DOMA's passage had "numerous expressions reflecting moral disapproval of gays and lesbians and their intimate family relationships — precisely the kind of stereotype-based thinking and animus the Equal Protection clause is designed to guard against."
----- No. No, no, no, no, no. The Equal Protection Clause, as part of the 14th Amendment (passed in 1868), exists to ensure legal benefits of all blacks in the United States who were now full fledged citizens. It was not intended to be, and should not be interpreted to mean, a clause that applies to the supposed 'right' of gay marriage. You could argue that DOMA violates the Full Faith and Credit clause, but it doesn't- because not all states have the same laws on gay marriage. If you argue that a gay married couple from Iowa need to be recognized as married in Texas, I'll argue that the illegality of gay marriages in Alaska needs to be recognized as valid in Massachusetts. We can't have it both ways.
For anyone who has bothered to read Public Law no.104-199 110 Stat 2419, the act has two main points (made in Sections 2&3). Section 2 says that no state is required to uphold the gay marriage license of another state within its own borders if it does not want to. Section 3 says that as far as the federal government is concerned, marriage is between a man and a woman. So what does this do? It upholds the 10th Amendment, which states that "The powers not delegated to the United States [read: US federal government], nor prohibited it by the States, are reserved for the States respectively, or to the people." The federal government is not delegated the power to decide on the legality of gay marriage simply because it has not been given that power by the constitution; therefore, the decision is left to the States. DOMA isn't saying "gay marriage is illegal". DOMA is saying "the issue is for the States to decide, and as such DC holds that marriage is man and woman". This decision is very much constitutional.
"This is huge," said Northwestern University law professor Andrew Koppelman, an expert on gays' legal rights. "For the first time, the president of the United States has taken the position that laws that discriminate against gays are unconstitutional."
----- Laws that discriminate against gays for reasons not relating to race, ethnicity, national origin, gender, or religion are constitutional. Why? Because the constitution does not list sexual preference as an illegal discriminatory factor...anywhere.
"White House spokesman Jay Carney said Obama is "still grappling" with his personal views on gay marriage, but regards the law as "unfair."
----- For the third time, he might find it unfair, but he does not have the power or authority to tell lawyers which federal laws to uphold.
"The action, prompted by a court-ordered filing deadline in two pending legal challenges to the law in New York and Connecticut, triggered a divided response. "While Americans want Washington to focus on creating jobs and cutting spending, the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue," said Brendan Buck, a spokesman for Republican House Speaker John Boehner."
----- Agreed, but the speaker is missing the point.
"Gay-rights advocates lauded the move as a landmark for gays' legal rights. Edith Windsor, who is one of the challengers to the federal law, said the administration had "done the right thing."
----- "The right thing" is subjective. And in cases, like this, where it is such, the law must be upheld.
"Windsor, who in 2007 married Thea Spyer in Canada, sued the government for refusing to recognize her relationship and imposing a $350,000 tax on Spyer's estate when she died in 2009. Had Spyer been a man, Windsor argues, she would not have had to pay the tax because spouses are exempt. "I knew that the government would never be able to justify that I had to pay a $350,000 estate tax simply because I was married to a woman," she said."
----- So now the federal government has to uphold the laws of other nations, especially when they contradict our own? No. And if Windsor had been single, straight or not, she would have had to pay an estate tax too. Where's the fairness for non-married Americans?
"Five states and D.C. allow gay people to marry. On Wednesday, Hawaii Gov. Neil Abercrombie, a Democrat, signed same-sex civil unions into law."
----- Five states. Five. 10% of the States have made gay marriage legal. This means 90% hold that it's not. How fair is it for the federal government to side with the 10% and ignore the 90?
I've broken down and refuted the three heavyweight arguments for gay marriage. If you'd like to read my essay on them, you can read it here.
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